This is part 3 of our on-going series on Texas Penal Code Section 22.01 Assault. Today we are going to talk about way to make a regular Class A assault (bodily injury) a felony. That would be an assault against a public servant. Section (a)(1)(b)(1) defines assault on a public servant as an assault against-
a person the actor knows is a public servant while the public servant is lawfully discharging an official duty, or in retaliation or on account of an exercise of official power or performance of an official duty as a public servant;
This requires that the defendant a) know the person is a public servant, and b) the public servant is performing is performing an official duty or (c) or in retaliation from the performance of an official duty. A third degree felony has a range of punishment of 2-10 years in TDC, and a possible $10,000 fine.
How do you know someone is a public servant?
Well, this statute is written in broad enough language to include all manners of public servant from teachers to firefighters to tax collectors, but it’s most often used when the complaining witness (the person who got assaulted) is a police officer. In that case, just being in uniform is enough to give a defendant notice. Sometimes a situation will arise that a police officer is in plain clothes, or even undercover and that can lead to issues about whether a defendant was aware the person was a public servant.
Performing an official duty
This is basically a limitation on the prosecution of cases where a public servant is assaulted for the reason that has nothing to do with her status as a public servant. For example, say Billy is a cop, but he’s also a rabid Cowboys fan. He goes to the Cowboys-Raiders game and starts talking shit to a Raiders fan named Crusher. Raiders fans love to fight, so Crusher proceeds to assault Billy. Crusher didn’t know Billy was a cop, and he didn’t care, he just wanted to get a fight in before the game ended. So even though Crusher assaulted a public servant, it had to do with football, not Billy’s duties as a cop.